Three reported rulings of the First Civil Chamber of the Cour de cassation (the French supreme court for civil matters) in 2016 clarify the indemnity owed by a co-owner who alone enjoys a jointly owned property (indemnité d’occupation within an indivision, joint ownership): when enjoyment is sole, who bears the property tax (taxe foncière), and from what date the indemnity runs after a divorce. On 31 March 2016, concerning co-owners who refused to hand over a key to the only entrance door of an inherited building, the Court holds that “the sole enjoyment of a jointly owned building results from the impossibility, in law or in fact, for the co-owners to use the property”. On 13 January 2016, it quashes the ruling that left the property tax to the occupying co-owner: the property tax “falls on the joint ownership until the day of partition notwithstanding the sole occupation”. On 27 January 2016, it fixes the starting point of the indemnity owed by a wife who held from the conciliation judge the free enjoyment of the marital home: the day the divorce becomes final (force de chose jugée), here the date she withdrew her appeal. For the valuer, these three rulings settle what gives rise to the indemnity, the accounts that go with it and the period over which it is computed.
The facts
In the first case, a man dies on 21 January 1990, leaving his wife, married under community of property, a son and a daughter. In 2004 the widow sues the son, together with the widower and the son of the daughter, who had died in the meantime, for partition of the estate. The Metz court of appeal, on 4 November 2014, rejects the son’s claim for an indemnity to be set against his brother-in-law and his nephew for the sole occupation of the building at Gerbévillers: they had refused to hand him in person a key to the only entrance door, but, in its view, that did not establish exclusive occupation.
In the second, a man and a woman buy a plot of land in joint ownership and build a house on it; partition is ordered. The Basse-Terre court of appeal, on 12 May 2014, awards the man 73 % of the sale price and the woman 27 %, and rejects his claim relating to the property tax: the property being jointly owned, the occupant must bear that charge.
In the third, a ruling of 22 February 2005 pronounces the divorce of two spouses. The Aix-en-Provence court of appeal, on 17 April 2014, sets the ex-husband’s claim against the post-community joint ownership (indivision post-communautaire) for property tax, then orders the ex-wife to pay an occupation indemnity from 22 February 2005: the conciliation judge (magistrat conciliateur) had granted her free enjoyment of the marital home during the proceedings, she had not returned the keys, and her withdrawal of the appeal against the divorce ruling was said to have made it final on its own date.
The decision
First ruling (Cass. 1re civ., 31 March 2016, no. 15-10.748, reported): partly quashed, under article 815-9 of the Civil Code on the occupation indemnity, and under articles 1382 and 731 on a head of damages unrelated to valuation. The Court states that “the sole enjoyment of a jointly owned building results from the impossibility, in law or in fact, for the co-owners to use the property”, and that “holding the keys to the entrance door of the building”, which allowed their holders, the brother-in-law and the nephew, “alone to have free disposal of the jointly owned property”, “constituted sole and exclusive enjoyment”. Remitted to Colmar.
Second ruling (Cass. 1re civ., 13 January 2016, no. 14-24.767, reported): under article 815-13, first paragraph, of the Civil Code, partly quashed: “the property tax, which serves the conservation of the jointly owned building, falls on the joint ownership until the day of partition notwithstanding the sole occupation”. Remitted to Fort-de-France on that point alone.
Third ruling (Cass. 1re civ., 27 January 2016, no. 15-11.151, reported): on the property tax, the ground of appeal is dismissed, “the burden of the property tax falling on the joint ownership, the court of appeal was not bound to answer ineffective submissions”. On the starting point, under articles 500 and 1086 of the Code of Civil Procedure, an appeal to the Cour de cassation being suspensive in divorce matters, “the divorce judgment becomes final on the date on which it is no longer open to any suspensive appeal”; the court of appeal had “rightly stated that an indemnity is owed only from the date on which the divorce decision becomes final”, but “the decision pronouncing the divorce had become final on the day Mrs Y… withdrew her appeal”. Partly quashed, only as to the starting point set at 22 February 2005; remitted to Nîmes.
What this changes for valuation
Sole enjoyment is established before it is quantified. The ruling of 31 March 2016 gives the test for sole enjoyment under article 815-9: the impossibility, in law or in fact, for the co-owners to use the property; holding the keys to the only entrance door is enough there, in that it leaves the holders alone with free disposal of the property. That test sheds light on the ruling of 3 October 2018 on a house bought with a survivorship clause (tontine), recalled in the article on the occupation indemnity until partition or return: occupying alone is not, in itself, sole enjoyment, so long as the occupant does not prevent the others from exercising their concurrent right. The report therefore describes, before any computation, who holds the keys, since when, what requests for a key were made; the glossary defines the indemnité d’occupation and the indivision.
The measure remains the rental value, period by period. The indemnity is computed from the market rental value (valeur locative) of the property at each time, less an allowance for the precariousness of the occupation and the unavailability of the property, which practice commonly places between 10 and 20 %. The ruling of 1 October 2025, discussed in the article on the home valued at partition, requires regard to the rental value throughout the sole enjoyment, not a frozen value. No loss to the joint ownership needs to be shown: the ruling of 11 July 2019 (no. 17-31.091), recalled in the article on the occupation indemnity until partition, approves an indemnity set without that inquiry. Conversely, a co-owner who occupies under a lease, even a verbal one, owes nothing on that account, as explained in the article on the co-owner as tenant under a verbal lease; the valuer first establishes the title, then the rental value year by year.
Property tax is not the price of occupation. Property tax, a preservation expense (dépense de conservation) within the meaning of article 815-13, first paragraph, is borne by the joint ownership until partition, occupied or not. The co-owner who paid it has a claim against the joint ownership under article 815-13, as explained in the article on the loan repaid by a single co-owner; it equals in principle the sum paid, subject to the equity that provision allows, the tax bringing no enrichment to the property. The two accounts are kept separately, the indemnity owed by the occupant on one side, the claim of whoever paid the tax and preservation expenses on the other; both appear in the liquidation statement, where they are set off when the occupant paid them.
After a divorce, the period starts on the date set by the judge and the procedure. Where the judge granted one spouse free enjoyment of the home during the proceedings, no indemnity is owed as long as a suspensive appeal, including one to the Cour de cassation, remains possible; where an appeal is followed by a withdrawal, the starting point is the date of the withdrawal, not that of the ruling. Without free enjoyment, the indemnity runs in principle from the date the divorce takes effect between the spouses: the non-conciliation order in proceedings begun before 2021, as in the ruling of 11 July 2019 already cited, and the divorce petition since then (article 262-1 of the Civil Code), as the guide Matrimonial property liquidation in France: which valuation date? explains. The order setting the provisional measures specifies, under article 255 of the Civil Code, whether enjoyment is free or not; the valuer asks for it, the decisions and, where relevant, the notice of withdrawal, with their dates. In an inheritance, the period starts with the sole enjoyment. In either case, it ends at partition or at the actual return of the property, a key not returned prolonging enjoyment just as holding the keys had created it. Article 815-10 of the Civil Code provides that no claim relating to fruits and income is admissible more than five years after the date on which they were or could have been received; the starting point used is therefore checked against the claims made and their dates and, after a divorce, the date on which the divorce became final. The guide Inheritance: house occupied by an heir describes the most frequent assignment.
What the valuer takes from it
- Sole enjoyment results from the impossibility, in law or in fact, for the co-owners to use the property; exclusive holding of the keys to the only access characterises it, in that it leaves the holders alone with free disposal of the property; occupying alone is not enough.
- The valuer describes in the report the facts on which it rests (keys, requests for a key, dates), before quantifying.
- The indemnity is computed on the market rental value of each period, with an allowance for precariousness; no loss to the joint ownership needs to be proved (ruling of 11 July 2019).
- Property tax is borne by the joint ownership until partition; whoever paid it has a claim, presented alongside the indemnity owed by the occupant.
- After a divorce with free enjoyment during the proceedings, the indemnity runs only from the date the divorce becomes final, that is, where the appeal is withdrawn, from the date of that withdrawal.
Further reading
The Market value page describes the assignment, its timescale and its fee. The guide Divorce: value of the home and equalising payment and the glossary entries indemnité d’occupation, indivision and valeur locative complement this article. On the same theme: Occupation indemnity: until partition or return of the property and Co-owner as tenant: a low rent is not an occupation indemnity. The decisions are available on Légifrance: no. 15-10.748, no. 14-24.767 and no. 15-11.151.
What next
A jointly owned property occupied by one person, a key withheld, property tax advanced, and an indemnity to quantify?
I establish the rental value of the property period by period, the allowance specific to the occupation indemnity and the accounts between the occupant and the joint ownership, property tax included, for the notary, the lawyer or the court.
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